U.S. Says Plea Talks Under Way With India’s Khobragade

By Patricia Hurtado -
Jan 9, 2014

Devyani Khobragade, the Indian
diplomat charged with visa fraud for underpaying her Indian
babysitter, has been in “ongoing” plea talks, Manhattan
federal prosecutors said, as she lost a bid to delay her case.

U.S. Magistrate Judge Sarah Netburn rejected Khobragade’s
request for a 30-day postponement, saying she failed to
demonstrate “good cause” why the delay should be granted and
the government hadn’t asked for an adjournment. A postponement
also wouldn’t prevent prosecutors from seeking a grand jury
indictment, Netburn said in her order yesterday. Under federal
law, prosecutors face a Jan. 13 deadline to file an indictment.

“The decision whether to seek an indictment is one
entirely at the discretion of the government, such that a
continuance of the preliminary hearing date does not provide the
defendant with any meaningful assurance,” Netburn said.

Daniel Arshack, a lawyer for Khobragade, 39, told Netburn
in a Jan. 6 letter that the delay was needed to “facilitate”
plea discussions and that his client was “distressed” that
prosecutors in the office of Manhattan U.S. Attorney Preet Bharara said publicly that plea talks were under way. The Jan.
13 deadline was causing “polarization” in the talks, Arshack
said.

Arrested, Charged

Khobragade was charged Dec. 12 with visa fraud and making
false statements. Arrested in front of her daughter’s school on
West 97th Street in Manhattan, she was held by the U.S. Marshals
Service in the federal courthouse in lower Manhattan. While
there, she was strip-searched and held with other female
suspects. Later that day, she was presented before a U.S.
magistrate judge and released on a $250,000 unsecured bond.

News of her treatment triggered a furor in India, and was
followed by government officials there scaling back security
outside the U.S. embassy in New Delhi and protests demanding a
ban on U.S. goods. Prime Minister Manmohan Singh called her
arrest deplorable while other officials have said the charges
should be dropped immediately.

Prosecutors said in a Jan. 6 letter to Netburn that they
weren’t seeking any extension in the case and that the court had
no jurisdiction over the matter, as the timing and whether
prosecutors bring an indictment “is in the discretion of the
government, and the defendant cannot alter that.”

Plea Discussions

“The office remains receptive to continuing the plea
discussions that have taken place over the past several weeks,”
assistant U.S. attorneys Amanda Kramer and Kristy Greenberg said
in the letter. “We have participated in hours of discussion in
the hope of negotiating a plea that could be entered in court
before Jan. 13.”

Prosecutors said that as recently as Jan. 5, the government
had “outlined reasonable parameters for a plea that could
resolve the case” which Khobragade and her lawyers hadn’t
responded to at that point.

Under U.S. law, prosecutors have 30 days to file an
indictment after a defendant is arrested on a sworn criminal
complaint filed with the court. If convicted of visa fraud,
Khobragade faces as long as 10 years in prison while the false
statements charge carries a maximum term of five years,
Bharara’s office said.

Babysitter Contract

Prosecutors said Khobragade submitted a contract as part of
the visa application, alleging she paid a babysitter $9.75 an
hour -- above minimum wage as required by law. In a second
contract, the diplomat agreed to pay the babysitter 30,000
rupees a month, or about $573, the U.S. said, which would be
$3.31 per hour. New York’s minimum wage is $7.25 per hour.

Arshack didn’t immediately return a voice-mail message
today seeking comment on plea discussions. In a Dec. 24
interview, he said the case was based on a series of mistakes
and should never have been brought.

A U.S. State Department agent misread a form the diplomat
helped the babysitter complete, along with related documents,
Arshack said in the interview. The form, which was prepared and
submitted online, called for Khobragade’s salary, not that of
the babysitter, he said. Khobragade wrote $4,500 per month,
whereas the babysitter made about $1,560 a month, he said.

Arshack said the government also misconstrued the different
payment terms in the two employment contracts. Arshack said the
second contract spelled out payments that were to be deducted
from the babysitter’s pay and sent to her husband in New Delhi.

Permanent Mission

Khobragade was named by her country to serve as a member of
its permanent mission to the United Nations, a position that
gives her a higher level diplomatic immunity than she enjoyed as
deputy consul general.

Bharara took the unusual step of issuing a statement on
Dec. 18 responding to criticism of Khobragade’s treatment,
saying she was treated as any other defendant in U.S. custody.
Khobragade had been “accorded courtesies” beyond others in
U.S. custody, he said, having been allowed her to keep her
mobile phone and make phone calls for two hours to arrange for
child care.

He defended the actions of U.S. marshals, saying Khobragade
was “fully searched” in a private setting by a female marshal.
Such searches are standard practice for every defendant in U.S.
custody to ensure the safety of personnel and suspects, he said.

The case is U.S. v. Khobragade, 13-mj-02870, U.S. District
Court, Southern District of New York (Manhattan).

To contact the reporter on this story:
Patricia Hurtado in Federal Court in Manhattan at